The Wrong Embryo

No matter how careful they are, people make mistakes. And mistakes create situations that no one ever intended, sometimes that no one ever imagined . One thing this means is that you can learn a great deal by examining what happens when mistakes are made.

There’s a law professor whose written about this and her work is very thought-provoking. Her name is Leslie Bender and you can find her work at her author page at SSRN (That’s one of those sites you must register for, although registration is free. You can find my published work there, too.) It’s worth your time.

Anyway, it is with her work in mind that I approach this next story. There’s a longer account of the same incident here, one that raises some good points but also omits some details and is frustratingly sloppy in part.

A woman in Japan was undergoing IVF. Embryos were created using her eggs and were then to be transferred into her uterus. (One thing I wonder here is where the sperm came from, but let that go for now.) Three embryos were transferred, two of which were ones created using her eggs. By mistake, the clinic transferred a third embryo, one created with an egg of another woman who was also undergoing IVF. The embryos were transferred on September 18 and September 20.

By October 7 it was clear that the woman was pregnant and somehow, around October 16 the doctor began to suspect that growing embryo was the one that had not been created with her eggs. (I’m weak on the science, but I’d really like to know what would make the doctor suspect this.) The thing is, there was apparently no way of being certain about this without doing amniocentesis, which could not be done for some time.

The question, of course, is what to do. (To the extent the article suggests that the doctors postponed telling the patient, this seems pretty clearly the wrong thing to do.)

In the real case, the woman elected to have an abortion without waiting to learn the genetic composition of the fetus. I suppose by way of explanation, the first article notes that “bearing and raising children who are not related to the mother is uncommon and has been discouraged by Japanese medical groups.” I have no idea if this is true. I’m not even sure what it means. Bearing and raising children are two quite different activities. In any adoption, a woman raises a child who is not related to her. (I’m assuming they mean genetically related.) The primary instance in which a woman bears a child who is not (genetically) related to her is gestational surrogacy. So that sentence could mean that adoption is discouraged or it could mean that gestational surrogacy is discouraged or it could mean both.

I’m going to put that to one side, however. As usual, I’m interested in thinking about how one ought to approach this question rather than in what actually happened in real life.

The first and simplest thing is that it seems to me that what to do must be the choice of the pregnant woman. That right to bodily autonomy–control of ones own person–is (for me) paramount. ( Of course, if you started from a different priority, you would reach a different conclusion here.) And suppose she chooses to continue the pregnancy? It seems to me that when the child is born, it is her child. She is the mother. That’s consistent with what I’ve said repeatedly elsewhere in this blog.

I think it ought to be pretty clear that had a child been born it would have been her child whatever the genetic make-up. She’s a bit like a surrogate it is true, but she never made any agreement to give the child up.

I think this highlights something important about surrogacy. If you think a gestational surrogate who gives birth is not the mother of the child, it isn’t because she is genetically unrelated to the child. It’s because of the agreement. Because here you can imagine a woman giving birth to a genetically unrelated child and it seems she must be the mother. If she is not, after all, who is?

I don’t think I’ve put this as clearly as I might have. Perhaps I’ll try to smooth it over tomorrow.

Also, if the woman whose eggs were used in the mistakenly transferred embryo has sued, what is the harm to her?

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About the Blog

Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.